Posetti v Kosciuszko Threbo Pty Limited [2007] ACTSC 4 (2 February 2007)

Last Updated: 8 May 2008

JULIE POSETTI v KOSCIUSZKO THREDBO PTY LTD

[2007] ACTSC 4 (2 February 2007)

PRACTICE AND PROCEDURE - Master heard action initially - found for defendant - successful appeal by plaintiff - matter remitted by Court of Appeal on specific grounds - scope of remitter

NEGLIGENCE - breach of duty of care - plaintiff slipped on ramp - whether ramp too steep and smooth - whether handrails inadequate - relevance of codes relating to alpine conditions, disabled access and emergencies

NEGLIGENCE - causation - fall on ramp - whether steepness and smoothness caused fall

Posetti v Kosciusko Thredbo Pty Ltd [2004] ACTSC 50

Water Board v Moustakas [1988] HCA 12; (1998) 180 CLR 491

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479

Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512

Temora Shire Council v Stein [2004] NSWCA 236; (2004) 134 LGERA 407

Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166

Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540

Woods v Multi-Sport Holdings Ltd [2002] HCA 9; (2002) 208 CLR 460

Wilkinson v Law Courts Ltd [2001] NSWCA 196

Martin v Wagga Wagga City Council [2004] NSWCA 289

Caledonian Collieries v Speirs [1957] HCA 14; (1956) 97 CLR 202

No. SC 487 of 2000

Judge: Master Harper

Supreme Court of the ACT

Date: 2 February 2007

IN THE SUPREME COURT OF THE )

) SC 487 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JULIE POSETTI

Plaintiff

AND: KOSCIUSKO THREDBO PTY LTD

Defendant

ORDER

Judge: Master Harper

Date: 2 February 2007

Place: Canberra

THE COURT ORDERS THAT:

The action be listed for submissions as to the orders to be made to reflect these reasons.

1. The plaintiff's claim in this action is for damages for injuries she suffered when she fell on a ramp at Thredbo in New South Wales on 5 August 1997. The defendant is sued as the company which occupied, managed and controlled the area of land on which the ramp was located. The claim was brought by originating application on 4 August 2000 and came on for hearing on 28 April 2003. The hearing ran for three weeks.

2. The action went to trial on the following particulars of negligence:

(i) Constructing and/or leaving in place a ramp on the walkway which was extremely slippery and hazardous in icy conditions.

(ii) Constructing and/or leaving in place a ramp on the walkway which was too steep for icy conditions.

(iii) Failing to ensure that the surface of the walkway on the ramp was raised or otherwise treated to reduce the risk of slipping during icy conditions.

(iv) Failing to supervise or supervise adequately the use of the walkway during icy conditions when it was extremely hazardous.

(v) Failing to provide adequate warnings of the risk of using the ramp during icy conditions.

(vi) Failing to warn persons such as the plaintiff that they should not walk upon the walkway in icy conditions unless special footwear was used.

(vii) Constructing and/or leaving in place handrails adjacent to the ramp which were inadequate.

3. I gave judgment on 23 June 2004 in favour of the defendant: Posetti v Kosciusko Thredbo Pty Ltd [2004] ACTSC 50. I determined that in order to succeed upon the pleadings, the plaintiff had to prove on the balance of probabilities that there was ice on the ramp. I understood counsel for the plaintiff to have conceded as much. I found that the ramp was free of ice at the time of the plaintiff's fall, and that she had thus failed to make out her case. The plaintiff appealed.

4. The Court of Appeal allowed the appeal on 25 February 2005, and by a subsequent order of 1 April 2005 remitted the matter to me for "rehearing on the further issues as to liability referred to in the judgment"; that is, in the judgment of the Court of Appeal of 25 February. An application by the defendant to the High Court of Australia for special leave to appeal was unsuccessful.

The scope of the remitter

5. The decision of the Court of Appeal, constituted by Crispin P, Gray and Marshall JJ, was given ex tempore on 25 February 2005, the learned President giving the reasons of the Court and the other Judges concurring. The President referred to the expert engineering evidence called during the hearing of Mr Allan Fozzard for the plaintiff and Mr Michael Cantalli for the defendant. His Honour quoted from the evidence of Mr Fozzard and noted that I had preferred his opinion to that of Mr Cantalli.

6. His Honour then dealt with the error which the Court discerned in my approach to the matter. It arose from an exchange between myself and Mr Crowe SC, then appearing for the plaintiff, during final addresses:

Master: Do you concede that because of the particulars in the statement of claim your case is reliant on a finding that there was ice on the ramp?

Mr Crowe: I think that's probably correct. I mean, it's always been the plaintiff's case - it's her evidence indeed - that there was some ice on the ramp and that's what caused her feet go out so suddenly and quickly as they did. So I think, Master, the answer to that question is probably yes.

7. The learned President went on to analyse the effect of that exchange and concluded that it related to the issue of causation and not the issue of negligence as I had assumed. It related to the question of particulars and did not involve any withdrawal of a submission made earlier by Mr Crowe to the effect that the structure was inherently dangerous irrespective of whether ice was present. His Honour went on to say that if it seemed necessary in all the circumstances he would unhesitatingly propose that leave be given for the concession to be withdrawn because it was based on a false premise and acted upon in a way that did not seem to have been contemplated. If the plaintiff had an arguable case in relation to the submission that Mr Crowe had previously made, and that case was fairly raised on the evidence before the Court, it should have been dealt with and it would have been in the interests of justice for that to be done.

8. The President went on to quote a passage from my reasons, which I will quote again:

I must also take into account the incontrovertible fact that the plaintiff slipped and fell on the ramp. I must ask myself whether there was a reasonable explanation for this happening in the absence of ice.

The ramp was steep and its surface relatively smooth. Other witnesses recalled having felt a sensation of insecurity when descending it. The plaintiff's footwear may well have had soles which in combination with the slope and the surface of the ramp failed to provide an adequate degree of friction.

It seems to me feasible that the plaintiff could have slipped and fallen on the ramp in the absence of an icy surface.

9. The learned President said:

It may be seen from this paragraph that the Master considered the question of whether the mere fact that the plaintiff had slipped and fallen in the manner described was itself indicative of ice but that he discounted the inference that might otherwise have been drawn by reason of the fact that the ramp was so steep and slippery that it might well have caused the plaintiff to slip and fall, even in the absence of ice.

However the respondent seemed to have escaped a finding of negligence on the basis that negligence of that particular kind had not been particularised. It should be observed that if in fact the ramp was too steep and too slippery and there was a significant likelihood that the plaintiff may have slipped and fallen by reason of the co-efficient of friction between her shoes and the ramp not being sufficient, then that at the very least gave rise to a real possibility of negligence which required investigation.

Furthermore, it is clear from the passage in Mr Crowe's address that I have already quoted, that the point had been expressly taken by Mr Crowe and that issue had been joined in relation to that issue by Mr Salmon.

10. His Honour then quoted the well-known passage from Water Board v Moustakas [1988] HCA 12; (1998) 180 CLR 491 (at 497), wherein the High Court of Australia said that a narrow or technical view should not be taken on the question of whether or not a point had been raised at trial. The pleadings would ordinarily assist but the particulars might not be decisive if the evidence had been allowed to travel beyond them. Where that happened and fresh issues were raised, the particulars should be amended to reflect the actual conduct of the proceedings. Nevertheless, the High Court said failure to amend would not necessarily preclude a verdict upon the facts as they had emerged.

11. The learned President went on to say:

In my opinion it was incumbent upon the Master to deal with the issue that Mr Crowe had raised during the course of his submissions, supported as it was by evidence from Mr Fozzard, or at least to indicate in response to the submission that Mr Crowe raised that he was not prepared to do so in the absence of amendment.

12. In response to the plaintiff's notice of appeal, the defendant put on a notice that it would contend on the hearing of the appeal that the following matters of fact or law had been incorrectly decided against the respondent:

(1) That the bobsled building was correctly classified as a Class 6 building under the Building Code of Australia (BCA).

(2) That the ramp was an exit from the bobsled building for the purposes of the [BCA].

(3) The ramp should have complied with the interim National Parks and Wildlife Building Code, the BCA and Australian Standard 1428.1.

(4) That the ramp, having regard to the gradient, surface and lack of proper handrails, was potentially dangerous, particularly in an alpine area or in any event, the gradient, surface and handrails of the ramp did not amount to a breach of any duty of care which the Defendant owed to the Plaintiff.

13. The notice also dealt with the issue of contributory negligence, which no longer arises.

14. Crispin P referred to the Notice of Contention towards the end of his reasons, and noted that senior counsel for the defendant relied on that notice to challenge some of my findings based on the expert evidence of Mr Fozzard. His Honour said:

Having carefully considered those submissions, I have concluded that there was evidence to support the Master's conclusions and it was open to the Master to make the findings which he made in respect of each such issue.

15. As I have said, the Court unanimously allowed the appeal. The matter was stood over for written submissions as to its future conduct. Their Honours delivered judgment with formal reasons on 1 April 2005, in which their Honours said:

The appeal was not upheld because of any perceived error in the Master's appraisal of the credibility or reliability of any of the evidence and a complete retrial of the issue would be unnecessary. There has been no suggestion of bias or any suggestion that the Master might be unable to properly consider the matters that were raised in our judgment or the impact of any new evidence adduced in relation to those matters.

On the other hand, the respondent's counsel have submitted that, as a consequence of our decision, all issues as to liability should now be open and the matter should be remitted to a different judicial officer so that the respondent does not feel that some of those issues have been predetermined against it by reason of the Master's previous decision.

In fact, the appeal was upheld on only two quite narrow grounds. First, the Master had regarded the appellant's claim as dependent upon proof that her fall was caused by ice on the ramp in question and he had not proceeded to consider whether it could have been sustained on the basis that the ramp was so steep and smooth as to be dangerous even in the absence of ice or water.

Secondly, that the Master had failed to determine an issue as to whether her injuries were attributable to negligence in failing to provide adequate handrails. It was these issues that we intended to be remitted for determination. It was not our intention to require that all issues as to liability be re-litigated. Accordingly, the contentions of counsel on behalf of the respondent must be rejected. We are satisfied that these further issues should be determined by the Master.

16. The sealed order of the Court was in the following terms:

The matter be remitted to the Master for re-hearing on the further issues as to liability referred to in the judgment herein, a copy of which is attached hereto.

17. When the matter came back to me for re-hearing, there was disagreement between the parties as to which of my findings had been endorsed by the Court of Appeal and could not be revisited, and which were in issue by virtue of the remitter.

18. Senior Counsel for the defendant submitted that the issues which could not be revisited were duty of care, contributory negligence and damages. However the question of breach of duty was intended to be revisited. The defendant had prepared itself to meet a certain case on the original hearing of the matter, that being a case based on the presence of ice, and the grounds of the claim had now shifted. It was entitled to bring new evidence to bear on the entire issue of breach of duty. Senior counsel for the defendant speculated as to what would have happened had I given Mr Crowe the opportunity to amend. He argued that Mr Salmon might have said:

Hang on. This changes things. If the focus of this case is now to be that it's the regulatory scheme that is so important in terms of this case, not so much the ice, if your Honour is going to take heed of all of that then we are entitled to go and call evidence, not from an engineer but from a person who does this kind of classification day in, day out.

19. Senior counsel for the plaintiff submitted that the only outstanding issue was that of causation. He submitted that during the course of the original hearing, the parties had fought out two significant issues. The first was in relation to the safety of the ramp, its smoothness and steepness, and compliance with relevant regulatory codes. The second was whether or not there was ice. He initially submitted that I had made findings which amounted to determining the issue of breach of duty in the plaintiff's favour, leaving it beyond the scope of the remitter. However, he later conceded that the issue of breach was open on steepness and smoothness.

20. On the second day of the hearing I gave an indication of my preliminary view that the remitter left the rehearing open only on what the Court of Appeal described as two quite narrow grounds. The first is whether the plaintiff's fall in the absence of ice was due to the ramp being so steep and smooth as to be dangerous, such that the plaintiff's fall could be attributed to a breach of the defendant's duty of care. The second issue arises as a result of my failure to determine the issue as to whether her injuries were attributable to negligence in providing inadequate handrails. It was agreed by senior counsel for both sides that their Honours' intention was to remit the matter to me in relation to that issue for the purpose of making a finding on the evidence which had been before me on the original trial of the action, and that it would not be the subject of further evidence.

21. The first issue leaves open the questions of breach and causation, but only as to steepness and smoothness of the ramp and not, as argued by senior counsel for the defendant, as to the entire question of breach.

22. It seems to me clear that those of my original findings which were challenged by the defendant's notice of contention were specifically endorsed by the Court of Appeal and may not be revisited. They have the same status for present purposes as admitted facts.

23. It is convenient to set these findings out in detail. From para 48 to para 75 of my judgment, I dealt with the expert engineering evidence given by Mr Allan Fozzard, who was called on behalf of the plaintiff; and Mr Michael Cantalli, called on behalf of the defendant. In that part of the judgment I simply summarised the evidence of those two witnesses.

24. It is useful to set out paragraphs 48 to 63, which deal with Mr Fozzard's evidence:

48. Both parties called expert engineering evidence. Mr Allan Fozzard is a consulting engineer in private practice and a Fellow of the Institution of Engineers, Australia. He qualified as an engineer at the end of 1964. He was employed by a succession of engineering firms until 1981, when he started his own practice. Since then he has been responsible for some thousands of building projects. He has acted as an expert witness on numerous occasions. He prepared three reports for the plaintiff's solicitors, and gave oral evidence. He conducted a site inspection in November 2000. He measured the length of the ramp as 4310 mm, its height as 1125 mm, and its slope at 15.13 degrees. The railing was 1000 mm above the deck and 1040 mm above the surface of the ramp. The rail was 190 mm wide and 50 mm deep, and was supported by vertical timber posts, 50 mm by 50 mm, 1880 mm apart. There was provision for five stainless steel cables spaced 130 mm apart below the railing though some of these were missing at the time of the inspection.

49. The surface of the ramp consisted of treated timber planks 100 mm by 50 mm, butted together. The surface appeared to have been dressed when new, but was highly polished at the time of inspection. Mr Fozzard's camera, placed on the ramp, slid down the slope, accelerating. The inspection took place between 12.00 noon and 1.00 pm on a dry and sunny day.

50. Mr Fozzard measured the slope at approximately 15 degrees or, in traditional terminology, 1 in 3.7. He regarded this as non-compliant with the Building Code of Australia, which on his interpretation required the ramp to have a gradient not steeper than 1 in 8. The Code, as he read it, required a ramp to comply with Australian Standard 1428.1. AS 1428.1 provided that the maximum gradient of a ramp exceeding 1520 mm in length was to be 1 in 14. The Code also contained a specific provision applying to any building constructed in an alpine area, which required an external ramp serving as an exit to have a gradient not steeper than 1 in 12. He expressed the opinion that the rationale for the special provisions in the Code about alpine areas was that in such areas icy and slippery conditions could be expected, making the non-alpine 1 in 8 maximum unsafe. In any event, the slope of the ramp, 1 in 3.7, violated all of the stated regulatory criteria.

51. Mr Fozzard next dealt with the requirements for a balustrade or handrail. AS 1428.1 required ramps to be provided with handrails. The top rail did not qualify as a handrail. It was at most a balustrade, though it was more than 1000 mm above the ramp. Compliance with the Code would require that a separate rail, with a maximum diameter of 50 mm, be provided in addition to the balustrade at a height between 864 mm and 1000 mm. In his opinion, pedestrians need to be able to obtain a grip on a solid, near-circular rail. He explained that the kind of handrail required was illustrated in Figure 1 and Figure 9 of AS 1428.1.

52. Mr Fozzard next dealt with the surface of the walkway and ramp. Both the Code and AS 1428.1, on his interpretation, required that the surfaces of walkways and ramps have a non-slip finish. A surface coefficient of friction of 0.4 was specified for horizontal surfaces. Sloping surfaces required an increased coefficient of friction. A slope as steep as the ramp in question would require a coefficient of friction exceeding 0.75. He said that leather on timber in clean and dry conditions has a coefficient of friction in the range 0.3 to 0.5. The surface of the ramp and deck only just provided a coefficient of 0.4, adequate for the level deck but totally inadequate for the ramp.

53. He said that simply walking up and down the ramp in the best possible conditions, on the day of his inspection, required some level of care. Even in the best of conditions he regarded the slope of the ramp as unsatisfactory for a public pathway providing access to and from the deck of the bobsled facility. Its risk was exacerbated by its smooth surface. He was also critical of the abrupt change of slope from the horizontal deck to the ramp, and said that a transition would have been preferable. There was no alternative access. He noted that another Australian Standard, AS 1657, directed towards industrial and maintenance applications for walkways and platforms, rather than for public access, would permit a ramp with a slope of 1 to 3.7, but the ramp would need to be provided with a cleated or grated and slip-resistant walkway surface. Thus, he said, the bobsled ramp would not even meet the less stringent requirements of that code.

54. In April 2002, Mr Fozzard was provided with copies of the architectural plans dated June 1994 which had accompanied the development application for the construction of the bobsled and the building and deck, and also with engineering structural plans. These did not cause him to change his previous opinion in any way. He noted that the ramp did not comply with the plans or any particular designs. The approval stamp affixed to each of the plans by the Kosciusko District Building Surveyor of what is now the NSW National Parks and Wildlife Service called for compliance with the relevant building code and Australian Standards current at the time of approval. Mr Fozzard also expressed the opinion that the construction of the ramp had been governed by the Kosciusko Interim Building Code 1994, the bobsled having been a place of entertainment. His opinion was that the external deck around the bobsled building was part of the building and an appurtenance to it.

55. In oral evidence, Mr Fozzard explained that the height of the bobsled building and ramp was 1300 metres above sea level, placing it within an alpine area (1200 metres or above, and likely to be subject to significant snowfalls) as defined in the Building Code of Australia. Referred to the classification of buildings into ten classes in Part A3 of the Code, he placed the bobsled structure and attached ramp into class 6 (a shop or other building for the sale of goods by retail or the supply of services direct to the public).

56. Mr Fozzard then referred to the Interim NSW National Parks and Wildlife Service Building Code, dated August 1994, applicable to building activities within national parks, including the Kosciusko National Park. The Interim Code requires such building activities to conform with, inter alia, the NPWS Building Code and the Building Code of Australia, including the NSW variations to the latter. The Interim Code requires that all work must comply with the development and building approval conditions and the approved plans and specifications (clause 2.13c). Clause 4.4.1 of the Interim Code states that the aim of the design standards is to ensure that all activities within the park are designed, inter alia, to ensure the wellbeing and physical safety of the public. Clause 4.4.7 provides that all buildings including associated facilities must be conveniently accessible by the disabled, and that the requirements of the Building Code of Australia and AS 1428 are the minimum acceptable standards. External works should be designed to ensure that people with disabilities are not unreasonably disadvantaged. Mr Fozzard was of the opinion that the Interim Code, including the provision as to disabled access, applied to the bobsled building, deck and ramp.

57. Mr Fozzard's evidence was that his original understanding was that the minimum gradient required for the ramp was 1 in 12, as specified in Part G4 of the Building Code of Australia, but having considered the Interim NPWS Building Code, he had changed his opinion and now was of the view that the minimum permitted gradient was 1 in 14, as provided by AS 1428. He noted that the original architectural plans showed a ramp which appeared to be some 30 metres long, but in the event a ramp was built which was much shorter and steeper.

58. Mr Fozzard then referred to clause G 4.7 of the Building Code of Australia, dealing with construction in alpine areas. The clause is as follows:

G 4.7 External Trafficable Structures

External stairways, ramps, access bridges or other trafficable structures must have-

(a) a floor surface that consists of steel mesh or other suitable material if it is used as a means of egress; and

(b) any required balustrade constructed so that its sides are not less than 75% open.

Mr Fozzard was of the view that the timber surface of the ramp was not a suitable material, though it would have been satisfactory if the ramp had been constructed with a slope of 1 in 14 or greater.

59. Mr Fozzard was asked to estimate the cost in 1994 of constructing a ramp with a slope of 1 in 14 and handrails as required by AS 1428. He was unable to provide an estimate in 1994 dollars but said that the cost today would be less that $5,000.

60. In cross-examination, Mr Fozzard said that his wife had herself slipped on the ramp on the day of their inspection. She was wearing shoes with polyurethane soles. It was put to him that the shoes were unsuitable for walking in an alpine environment. He answered that they were not walking in an alpine environment. He agreed that the 1 in 14 gradient was essentially set for the disabled. He accepted that there were gradients on some pathways in national parks that do not comply with the standards. He explained that there were five different types of paths, with different requirements applying to each. He made the point that the ramp in question is effectively attached to the bobsled building and is therefore governed by the rules that apply to the building. The deck was the base of the building, and was a platform constructed as part of a total facility, in the same way that a veranda forms part of a house. He was challenged on his opinion that the ramp formed an egress from the building. It was put to him that one did not have to use the ramp to get to the building. His response was that it was the only way to get to the building if coming from the north.

61. Mr Fozzard was shown the two pairs of boots which had been tendered during the plaintiff's evidence. He thought that the soles of the suede boots could be regarded as rubber, so as to have a satisfactory coefficient of friction on the ramp in dry conditions. He was less sure of the grooved resin soles of the elastic-sided boots. He thought that they might qualify when new but would be likely to become unsuitable once the soles became worn.

62. It was put to Mr Fozzard that there was nothing about the visual appearance of the ramp which made it appear dangerous. He disagreed with this. It was obvious to him from the photographs, and from his visual inspection, that the ramp was dangerously steep.

63. It was also put to him that the requirements about a ramp serving as an exit from a building related only to an exit required as a fire escape. He disagreed with this, and said that the requirements were of general application.

25. I returned, at paragraph 137 of the judgment, to an analysis of the engineering evidence and to my findings on the issues raised by that evidence. At paragraph 143, I said that I accepted the evidence of Mr Fozzard rather than of Mr Cantalli as to the class of building within the Building Code of Australia applicable at the time of the construction of the ramp. Mr Fozzard's opinion was that the building was a class 6 building - that is, a shop or other building for the sale of goods by retail or the supply of services direct to the public - whereas the opinion of Mr Cantalli had been that the building came within class 10 - that is, a non-habitable building, or an outbuilding or structure. I said that I was satisfied that the bobsled building was a building for the supply of services direct to the public, and hence, a class 6 building within the Building Code of Australia. This finding was upheld by the Court of Appeal.

26. At paragraph 145, I dealt with an issue which had arisen during the hearing as to whether the ramp on which the plaintiff fell was an exit from the bobsled building. I repeated, as I had said earlier in the reasons, that Mr Fozzard's evidence was that the ramp was an exit from the bobsled building, whereas Mr Cantalli's opinion was to the contrary. I said that I preferred the opinion of Mr Fozzard, and I accepted his opinion that the ramp was an exit from the bobsled building for the purposes of the Building Code of Australia. This finding was also upheld by the Court of Appeal.

27. I said at paragraph 147 that I accepted the evidence of Mr Fozzard that the ramp should have complied with the interim National Parks and Wildlife Service Building Code with the Building Code of Australia, and also with Australian Standard 1428.1, and that I further accepted his evidence that the ramp failed to comply with any of those. This finding was likewise upheld by the Court of Appeal.

28. I accepted his evidence that the ramp, having regard to its gradient, surface and lack of proper handrails, was potentially dangerous, particularly in an alpine area. This finding was again upheld by the Court of Appeal.

The new evidence

29. Further evidence was adduced during the course of the rehearing. The defendant called Mr Brendan Bennett, an accredited building certifier, to give expert evidence. The plaintiff called Mr Fozzard at the defendant's request so that he could be further cross-examined. Both sides also tendered further exhibits, including two planks from the ramp, which were tendered by the defendant.

30. Mr Fozzard said that he had been to look at the ramp only once. This was in November or December 2000.

31. He was asked numerous questions about the description of the ramp given in his report. He had said that the railing of the ramp was supported by vertical timber posts. It was put to him that they were in fact steel posts. He accepted that they were steel. He explained that his notes mentioned both timber and steel. He was confused and when he looked at the photographs he thought that the posts were constructed from timber.

32. He was asked about his measurements of the timber planks which made up the surface of the ramp. He was asked how he determined that the planks were 100 mm wide, and said that he had measured them. Asked whether he physically measured them, he said that he had not; he had measured the length of the ramp and divided that length by the number of planks. He had measured the entire length of the ramp at 4,310 mm. Given his conclusion that the planks were 100 mm wide, he agreed he must have counted approximately 43 planks. He proffered that he had counted the number of planks by looking at the photographs after leaving the site. When asked whether he was making this up, he said. "I don't wish to be precise about these things, it is an area I'm not even addressing as regards the size of the planks. It is irrelevant to my way of addressing this subject. It's not critical." He had not measured the width of an individual plank. Mr Fozzard was asked to find the relevant photograph in his report and count the planks. He estimated the number to be about twenty-six to thirty. He conceded that the calculations in his report as to the width of the planks had been in error.

33. He was then asked about his description of the timber planks as "treated". He said that in his interpretation they were. When pressed, he said that he was not familiar with the terminology but that based on his visual observation, and taking into account the weathering that had occurred, it had been his interpretation that the planks could well have been treated. He agreed that he could have been mistaken.

34. He had stated that the timber planks from which the ramp was constructed had been dressed. He explained he had meant that the sides of the timbers were dressed. He went on to explain that the long vertical sides of the planks were very true and married into each other. They were cut cleanly; that was his interpretation of dressing. He agreed that they were not fully dressed but said that they were partially dressed. He agreed that dressed timber was used for internal work, such as handrails, and was planed to avoid splinters. He agreed that the timber in the courtroom was all dressed timber. It was put to him that the vertical sides of the planks were "sawn" rather than "dressed", and that the two were not the same thing. He said that rough-hewn or rough-sawn planks were undressed, that the planks used to build the ramp needed special care to make sure they were straight and true, requiring a proper saw, as opposed to a "big saw". His only experience with hardwood decking timber was at an amateur level.

35. Mr Fozzard was asked whether it was the long vertical sides which he had described as "highly polished". He answered that it was the long horizontal surface which was highly polished. Senior counsel for the defendant then quoted his report: "The timber surface appeared to have been dressed when new, but was highly polished on our inspection". He was asked whether the references in the same sentence to the timber surface being dressed and highly polished were in fact to two different surfaces of the planks. He could not provide any satisfactory answer to this question. It is impossible to reconcile his oral evidence with the plain meaning of the sentence in his report.

36. He said that "polished could mean dressing as well" and said "I didn't feel it was all that critical, actually".

37. He went on to say that the highly polished appearance of the surface of the planks could have been due to wear. Wear could polish the surface of the planks. He agreed that there had been no sign of "polish as polish", but only shininess on the boards which he interpreted as polishing. He put this shininess down to wear. He agreed eventually that when he referred to "polish" he in fact meant "wear". He said that different parts of a hardwood timber plank would wear differently over time. He agreed that the timber was probably not seasoned.

38. It was put to him that looking at a photograph of the ramp taken from his report, one could see gaps between the planks. He did not agree that there were gaps, suggesting that the dark lines apparent next to some planks could be caused by one being slightly higher than the next and casting a shadow. This could be due to a bow in the timber, causing a height differential. For my part, despite counsel for the defendant's submissions to the contrary, I could not be sure from looking at the relevant photograph that the dark lines were caused by a gap rather than a shadow.

39. Mr Fozzard was then taken to the section of his report dealing with co-efficient of friction. He had written:

The walkway surface

The BCA and AS 1428.1 both require that the surfaces of walkways and ramps must have a non-slip finish. Both these sources in this regard refer directly and indirectly to AS 4586, AS 3661.1 and AS 3661.2 and HB 197.

A surface co-efficient of friction of 0.4 is specified in these standards for horizontal surfaces. Sloping surfaces, as a consequence of the influence of the slope, require an increased co-efficient of friction. A slope correction as applied to this ramp in question would require a co-efficient of friction of the surface exceeding 0.75, putting aside the issue of the non-compliance of the slope.

. . .

A timber deck, with smooth butting joints may only just provide a friction co-efficient of 0.4 for the horizontal surface requirement (leather on timber in clean and dry conditions has a co-efficient of friction in the range 0.3 to 0.5). The timber deck on the ramp surface is far from adequate, as it does not achieve the 0.75 requirement.

The surface of the deck is unsatisfactory.

40. Mr Fozzard conceded that on the assumption that a co-efficient of friction of 0.4 was required for a horizontal surface, the required slip resistance on the ramp was 0.73 according to the calculations set out at the end of his report, rather than 0.75 as appeared in his report.

41. Mr Fozzard agreed that since he had commenced working in January 1965, he had never undertaken any friction testing in his professional life. When necessary, he had engaged others to do such testing. He had done some such testing as a university student during the early 1960s.

42. It was put to Mr Fozzard that he had no basis for saying that a horizontal surface of timber with smooth butting joints may only just provide a co-efficient of friction of 0.4. It seems to me that he based on the opinion on the premise that leather on timber in clean and dry conditions had a co-efficient of friction in the range of 0.3 to 0.5.

43. He agreed that he did not undertake any friction testing on the ramp; the only test he did on his inspection was to put his camera and tape on the ramp. Both of them slid down the ramp which to him showed that the ramp was "very steep and very slippery". When asked by counsel for the defendant if Mr Fozzard meant to tell the Court that this was " meant to be some form of scientific test". Mr Fozzard replied "it is as good as any". He said that it was unnecessary for him to determine the precise co-efficient of friction of the ramp as it was too steep regardless. He agreed that he would defer to the opinion of someone who had studied co-efficient of friction and how it is applied in practical settings.

44. When asked whether his general understanding on the material he had seen since the first hearing was that the co-efficient of friction for the ramp was adequate for the shoes being worn by the plaintiff, he answered "marginally so".

45. Counsel for the defendant asked Mr Fozzard whether it was now his view that the appropriate classification of the bobsled building was as a class 9b structure. This question was objected to on the basis that my finding that the bobsled building was a class 6 structure could not be revisited. Senior counsel for the defendant submitted that this line of questions was relevant to the reliability of the witness as an expert. I allowed questions as to Mr Fozzard's new view of the classification of the structure, as to his reliability, on the basis that my finding that the building was a class 6 building now had the equivalent status of an admission on the pleadings.

46. Mr Fozzard agreed that it was now his view that the structure should be classified as a class 9b structure, and that an alternative potential classification could be 7b, although he said that in the circumstances he could only classify it as a 9b.

47. The Building Code of Australia 1990 states that "the classification of a building or part of a building is determined by the purpose for which it is designed, constructed or adapted to be used. A building is in Class 9 if it is "a building of a public nature", class 9b is "an assembly building and . . . includes a trade workshop, laboratory or the like in a primary or secondary school, but excludes any other part of these buildings that are of another class."

48. The Interim NPWS Building Code includes:

5.3 Places of public entertainment

5.3.1 Application for a place of public entertainment

Prior to using any premises, building, or temporary structure an activity application must be submitted to the NPWS. The application must provide adequate information for the NPWS to determine the matter, such as:

a) matters pertaining to the Building Code of Australia requirements for class 9b buildings. . .

. . .

49. It transpired from the cross-examination that Mr Fozzard's altered view was based on this part of the Interim Code. The Interim Code includes definitions of terms, some of which Mr Fozzard relied on to come to this conclusion. They are relevantly:

`Entertainment' is a public entertainment for the purposes of this Part even though

a. some (but not all) persons may be admitted to the entertainment otherwise than on payment of money, or other consideration, as the price or condition of admission; or

b. such payment, or other consideration, is demanded,

(i) as the charge for a meal or other refreshment, or for any other service or thing, before admission to the entertainment is granted; or

(ii) as the charge of the entertainment after admission to the entertainment has been granted

c. entertainment includes a reference to

(i) amusement provided by means of any ride or device or by any other means (such as by pin-ball or video games); and

(ii) an exhibition, sporting event or contest.

d. A person promotes or conducts a public entertainment if the person is interested in the proceeds or profits of the entertainment.

. . .

`Licence': permission under Sections 151 and/or 152 of the Act to carry out specified activities.

. . .

`Place of public entertainment' means an open air theatre; or

drive-in theatre; or public hall; or

licensed premises providing entertainment;

. . . (emphasis added)

50. I was informed by senior counsel for the defendant that the reference in the definition of "licence" to sections 151 and 152 of "the Act" is a reference to the National Parks and Wildlife Act. Having looked at these sections, I am satisfied that this is correct. Section 151 is concerned with leases of and licenses over reserved or dedicated land; s 152 confers power on the Director-General to grant licences to carry on trades, businesses or occupations "within a national park or historic site".

51. It became apparent that Mr Fozzard was relying on a certificate issued under the New South Wales Construction Safety Act 1912 by the Workcover Authority on 30 September 1994, which certified that the "Electric Driven Alpine Slide" was registered pursuant to Reg 157B(5) of the Regulations under that Act. Mr Fozzard had taken this certificate to be a "licence". He had thus come to the conclusion that the whole bobsled facility was a "place of pubic entertainment", in the sense that it was "licensed premises providing entertainment". He was strengthened in this view by the fact that at c(i) under the definition of entertainment it is stated that entertainment includes a reference to ". . . amusement provided by means of any ride or device or by any other means . . ." He stated that in his opinion "the whole facility is licensed, with the building being part of that facility".

52. He said that on his interpretation the whole development, that is the entire structure the subject of the development and building application approved on 30 August 1994, had to be classified as 9b, despite the fact that parts of the structure might be classified otherwise.

53. He reiterated his opinion that over time the effect of people walking on the hardwood timber planks, exposed as they were to the alpine environment, was that the planks would become smoother in parts and more rutted in other parts. Mr Fozzard was shown two boards from the ramp which were put into evidence by the defendant. Asked to look at one of the boards, Mr Fozzard said that it was more damaged than he would have expected. He went on to proffer his opinion that the damaged surface demonstrated the inappropriateness of this plank in lieu of using metal treads, in that it presented a tripping hazard.

54. In re-examination, Mr Fozzard said that the errors in measurement of the width of the planks did not make a difference to the opinions he had expressed about the appropriateness or safety of the ramp's surface. He confirmed that he had used the expression "polish" to mean "wear", to refer to the intermittent shininess of the timbers in the photographs. Over small sections of the planks an element of polish in this sense was discernible from the photographs. He would expect areas of degradation, by which he meant "general roughening of the surface", over small or large areas, not unlike what was observable from the exhibited planks.

55. Mr Fozzard agreed that he was not a planner, and had no planning qualifications. Neither did he have any legal qualifications.

Analysis of Mr Fozzard's evidence

56. In forming my opinion of Mr Fozzard's evidence, I took into account the fact that it has been some years since he first gave evidence in this case. It is a longer time still since he inspected the ramp.

57. Having said this, I found him to be an unimpressive witness on this occasion. His description of the posts as being made of timber is an understandable mistake, but the error in his calculations as to the width of each plank gave me the impression that he had been careless in compiling his report. I find his description of the planks as "treated", and their surface as "dressed" and "highly polished" to be inaccurate and potentially misleading. His attempts to qualify the descriptions used in his report led him to an untenable position. He sought refuge in an explanation which contradicted the plain meaning of the report.

58. I accept that there had been some wear at the time he inspected the ramp which caused the ramp to be smoother in some parts than others, an effect which could be described as a polishing effect. It is clear from his evidence-in-chief that the word "polished" referred to wearing of the surface, not the application of a polishing agent. However, having heard his evidence on the rehearing, the descriptions in the report seem to convey his general impression at the time of his inspection, rather than to describe surfaces, dimensions and gradient with accuracy.

59. Mr Fozzard was surprised to find planks taken recently from the ramp so rough, contrary to his prediction that they would become smoother over time. His reaction was to volunteer the opinion that the rough surface could create a trip hazard, which demonstrated the inappropriateness of the boards for use on the ramp. His proffering of this unprompted and seemingly irrelevant opinion gave me an impression of some lack of objectivity and of some motivation to assist the plaintiff's case to the extent he could.

60. Mr Fozzard gave evidence about the co-efficient of friction of the ramp. He agreed that his only experience in testing co-efficient of friction was in the early 1960s whilst studying at university. Throughout his professional career, he had always commissioned people to do such testing if required. He agreed he had never tested hardwood surfaces. He was unable to direct the court to the source of his opinion that the timber surface was insufficient for leather shoes on a ramp. The only testing he conducted was to slide his tape measure and camera down the ramp. He believed that this test was "as good as any". He did not believe it necessary to determine the co-efficient of friction because the ramp was too steep regardless. He agreed that on the material he had seen prior to the rehearing his general understanding was that the co-efficient of friction was marginally adequate for the shoes being worn by the plaintiff on the day of the accident. I am not satisfied that Mr Fozzard has the necessary expertise to give evidence in relation to the actual co-efficient of friction of the ramp on the day of his inspection. Nor did he conduct tests that would ground such an opinion. His evidence in this respect is of little more probative value than that of a lay witness inspecting the ramp three years after the accident.

61. In my original judgment, having said that Mr Fozzard thought the building came under class 6, and Mr Cantalli that it came under class 10, I noted that it was common ground that it did not come within any of the other classes. Mr Fozzard's change of opinion as to the correct classification of the ramp brings about an unfortuante situation: my finding that the building was a class 6 structure cannot be revisited, despite being based solely upon Mr Fozzard's original opinion.

62. Mr Fozzard is not a planner, nor is he a lawyer. His interpretation of the Building Code of Australia is misguided. However, he was asked about the reclassification only to test the reliability of his evidence on the rehearing - that is, evidence as to whether the ramp was too steep or smooth. To a small extent, his change in opinion and the reasons for that change add generally to my doubts about Mr Fozzard's reliability as an expert, but I think the mistake is understandable and does not specifically affect his evidence as to the issues on remitter. I note that those matters raised in paragraphs 1-3 of the defendant's notice of contention were largely based upon the evidence of Mr Fozzard, but cannot be revisited.

The evidence of Mr Bennett

63. Mr Brendan Bennett was called by the defendant to give evidence. He is a building surveyor in private practice. He has a Bachelor of Applied Science (Environmental Health) degree from the University of Western Sydney and a Graduate Diploma in Building Surveying and Assessment from University of Technology, Sydney. He has been a member of the Australian Institute of Building Surveyors since 1989. He is accredited under the NSW Planning Institute of Australia Accreditation Scheme as a Grade 3 certifier. He explained that this was equivalent to the highest level of certification provided by the most common accreditation scheme, the Building Surveyors and Allied Professions scheme. He said that across the various schemes there were approximately twenty people in New South Wales certified at the top level.

64. His day-to-day work was approving building applications. He had regularly been required to assess the slip resistance of surfaces to determine compliance with the BCA. In most instances, he would make an assessment based upon the material and would accept that the surface was compliant without requiring testing to be carried out. If testing was required, Mr Bennett said he "would ask for it" to be carried out. I gathered from this that he did not conduct the testing himself.

65. Mr Bennett's report is dated 23 June 2006. He had been provided with the reports of Mr Fozzard prior to preparing the report, along with background documents, photographs and Codes. It should be noted that in accordance with my ruling on the scope of the remitter, a large portion of the report was agreed by the parties to be inadmissible, and was therefore not tendered.

66. In the report, he stated that the bobsled is located along Merritt's Walk, which had started out as a walking trail between the village and temporary staff lodgings and a caravan site situated where Woodridge is now. A boardwalk was constructed between the tennis courts and the bobsled facility, but the section between the bobsled and present-day Woodridge was unformed. It included retained earth mounded steps similar to those found on Merritt's Trail at the time of the report. The remainder of the walkway was paved in the summer of 1996-1997. The main circulation route for pedestrians in Thredbo is a system of roadways shared with motor vehicles. Merritt's Walk forms part of this system as an independent pedestrian pathway.

67. The bobsled ride was purchased from a Queensland theme park. It required modifications to fit into the Thredbo environment. The facilities were constructed by the defendant. Merritt's Walk was modified so that the boardwalk rose to the level of the deck surrounding the shed. The approach on the Valley Terminal side has a long incline of approximately 40m. The steepest gradient on this incline is approximately 1 in 5.5 (10 degrees or 18%). On the other side of the deck, the ramp in question descends from the south-eastern corner of the deck, continuing Merritt's Walk from the bobsled facility down to Woodridge. The ramp has a consistent gradient of approximately 1 in 3.9 (14 degrees or 25%). The ramp is constructed of rough-sawn, untreated, hardwood planks of 145 x 145mm, butt joined. Mr Bennett disagreed with Mr Fozzard's description of the timber as being dressed and treated. At the time Mr Bennett inspected the accident site in May 2006, the ramp was covered with a carpet, but he was told that this had not been so at the time of the accident. Mr Bennett looked under the carpet at the ramp and was satisfied that its appearance was consistent with photographs provided to him. The ramp had a handrail on both sides, consisting of a dressed timber toprail, laid on its flat, supported by timber posts with intermediate wire balustrades at a height of approximately 1050mm. The handrail was 195 x 42mm.

68. Mr Bennett addressed the question put to him by the defendant's solicitors: "Was the ramp sufficiently steep (in the absence of ice) so as to present a danger to pedestrians in any event?" According to Mr Bennett, neither the NPWS Interim Building Code nor the BCA specify minimum slope requirements for the construction of the ramp on which the plaintiff fell. AS 1428.1 is addressed to achieving a manageable path for people with disabilities. Pedestrian paths thoughout Thredbo Village are commonly steeper than 1 in 8 (12.5%), the minimum BCA requirement for an emergency egress ramp; some have gradients equivalent to or steeper than the ramp in question.

69. Mr Bennett relied upon a book by John Templer, The Staircase: Studies of Hazards, Falls and Safe Design (1994), apparently recognised as a leading work on considerations of human movement in relation to construction of staircases, ramps and balustrades. The work is cited on numerous occasions throughout Mr Bennett's report. Part of the text was tendered into evidence. By agreement between the parties, Mr Bennett helpfully marked those sections of chapter 3, "Slope, Surface and Slip Resistance" upon which he had relied in preparing his report.

70. Mr Bennett walked up and down the ramp in both dry and damp conditions. He did not feel the need to use the handrail, and found usage of the ramp to be "within normal walking behaviour". He noted that carpet had been placed upon the ramp, but that the gradient had not changed since the accident.

71. Mr Bennett noted that the ability to use a ramp is linked to physical strength and stamina. He cited Templer for the proposition that ramps steeper than 1:8 are difficult or in some cases impossible for the elderly and disabled to use.

72. He referred to the "Walking Track Construction Guideline" published by National Parks and Wildlife Service of New South Wales on an unknown date. This document was tendered on the original hearing during the evidence of the defendant's expert witness, Mr Cantalli. I referred to the document in paras 68 and 74 of my judgment. I did not rely on it to any extent in coming to my decision, but on the issues under remitter I have found it to be useful. The three grades of walkway defined in the document are:

Walk: A well constructed and surfaced path designed for high use by persons of all ages and physical condition [sic]. Constructed to shoe standard.

Easy grades suitable for disabled use may be required, with bridges or boardwalks where necessary.

Development costs may be high, with planning for lower maintenance costs.

Track: Well defined and suitable for people of average fitness with some experience. Benched and drained as necessary with regard to erosion and water damage. Built to "boot" standard.

Route:

Lightly marked route for well equipped and experienced walkers. Routes are unconstructed except for erosion control work. Sturdy "boot" standard.

Two images are provided in the NPWS document by way of illustration. They do not appear in Mr Bennett's report, but I found them helpful in understanding the distinction between the different grades. They are set out below.

"Image removed to allow for web posting. Contact ACT Supreme Court Library"

73. Mr Bennett noted that according to construction standards set out in the guidelines, a "track" is permitted to have a gradient of up to 20% or 1:5 over a short distance. A steeper slope of 25% (1:4 or 14º) is also indicated for a "track" as being the "machinery max". A "Track Grade Chart" appearing later in the document elucidates further. 25% (1:4) is the "ideal max track grade". He expressed the opinion that, whilst it would not meet the gradient requirements for a "walk", the ramp does meet the requirements for a "track". I note that the preferred maximum gradient for a "walk" according to the guidelines is 8% (or 1:12).

74. Mr Bennett considered the ramp to be steep at a gradient of 1:3.9, but not too steep having regard to expected users and the function of the ramp: it did not breach building codes; it complied with the NPWS guidelines for a "track"; it was within an alpine environment wherein pedestrians were commonly exposed to equivalent or steeper gradients; and it was only accessible after traversing steep gradients from either direction.

75. Mr Bennett further addressed the question posed by the solicitors for the defendant: "was the surface of the ramp sufficiently slippery (in the absence of ice) so as to present a danger to pedestrians in any event?"

76. Mr Bennett noted that the surface of the ramp was consistent with that of the deck from which it descended and, as I said, he did not accept Mr Fozzard's description of the timber as "dressed" or "treated". The exposed surface of the timber was rough and would provide a very different slip resistance to smooth or polished timber.

77. Mr Bennett stated that the BCA does not specify minimum design standards in terms of slip resistance for ramps of egress, unless they are required as an exit ramp in the event of a fire or other emergency, or where they provide access to people with disabilities. His report refers to part D2.10 of the BCA which, unfortunately, is not in evidence..

78. Mr Bennett stated that the slipperiness of a surface is a product of the linear relationship between surface material and gradient, which can then be influenced by other factors such as shoe type and weight of the pedestrian and the presence of dirt, water or ice on the surface. He quoted Templer: "People slip when they encounter a surface where the co-efficient of friction between the shoe and floor is inadequate for the forces present". In accordance with AS/NZS 3661.1, Slip resistance of pedestrian surfaces - Part 1: Requirements, a document tendered by the defendant on the rehearing, a gradient of 1:3.7 would require a co-efficient of friction of 0.75 to be slip resistant. By reference to a table in Templer setting out the co-efficient of friction provided by plywood against a Neolite rubber-soled shoe as 0.75, Mr Bennett concluded that the rough-sawn untreated timber on the ramp would, in contact with the rubber-soled boots worn by Ms Posetti at the time of the accident, provide a co-efficient of friction of at least 0.75. To assist the court, a sample piece of plywood was added to the defendant's exhibits.

79. Mr Bennett reiterated his opinion that Merritt's Walk was a "track" in accordance with the definitions in the NPWS guidelines. The reference to "a `boot' standard", in his view, demonstrated that the guidelines anticipated that people using the walkway would be wearing appropriate footwear.

80. On the question of slipperiness, Mr Bennett concluded that the ramp surface was "not sufficiently slippery in normal use to present a danger to pedestrians in dry conditions": the surface did not breach building codes; it achieved a suitable co-efficient of friction for dry conditions; and it was part of a "nature walk" only suitable for people of average fitness with some walking experience.

81. In cross-examination, Mr Bennett agreed that halfway between the bobsled and Woodridge, Merritt's Walk intersected with Merritt's Track, which ran from the point of intersection up the hill. He agreed that Merritt's Walk and Merritt's Track were quite different in character. There were a variety of different tracks on the mountain, most of which were unsealed. Along Merritt's Walk in 1997 were facilities which had little or nothing to do with mountain or bushwalking, such as barbecues, tennis courts and the bobsled. These facilities were likely to have attracted the full range of family members. When asked whether he agreed that the type of person who could use Merritt's Walk was wider than the class of person who could use Merritt's Track, he did not answer directly but stated his opinion that the gradients of the ramp on the Woodridge side of the bobsled and of the incline of the pathway on the Valley Terminal side leading up to the bobsled would limit the range of people who could use the pathway.

82. He agreed that there were nonregulatory factors taken into account when designing the gradient of a ramp. As well as the gradient and surface material, biomechanical considerations were a factor: that is, considerations of the varying co-ordination and physical stamina of pedestrians, which can have an effect on whether or not they will fall. Familiarity of the pedestrian with the ramp would also play a role. He agreed that descending a ramp is more dangerous than ascending it: falls were more common during descent.

83. Mr Bennett did not agree that there was a minimum standard for ramps set out in the BCA in situations not involving disabled access or emergency (including fire) exits.

84. He reiterated the opinion espoused in his report that the ramp was not governed as to gradient by the BCA or AS1428. This opinion was based on his classification of the building. The parts of his report which related to his classification of the building were not tendered. I infer from a question asked by senior counsel for the plaintiff that Mr Bennett had arrived at the conclusion that the building ought to be classified as class 10. The relevant point is that his opinion on the applicability of the BCA and AS1428 to the ramp's gradient were based on a view that the bobsled facility was not a class 6 building, and is therefore inconsistent to that extent with factual findings I am precluded from revisiting.

85. Taken to the architect's drawings of the deck surrounding the shed, Mr Bennett agreed that parallel dotted lines extending horizontally from the right-hand side of the deck in a drawing entitled "Balustrade South" (DA07) depicted the proposed location of the starting point for the ramp's descent from the deck. Drawing DA02, a bird's eye view of the shed, decking and base of the bobsled ride, contains parallel lines extending from the correlative location to the right-hand edge of the page, inbetween which appear the words "New raised walkway connecting with exist walking track - see site plan". Drawing DA01 provides a wider bird's-eye view taking in the tennis courts in the bottom left corner, the proposed new raised deck leading from the tennis courts to the bobsled facility, the bobsled facility, including the deck, the shed and much of the ride, the existing walking path between Woodridge and Valley Terminal, and the proposed re-routing of that path to service the bobsled. Depicted on the drawing is an elongated rectangle running from the point from which the ramp now descends to the right of the drawing in the direction of Woodridge. An annotation says "New raised timber deck extended back to level of existing walking track. Extent of deck to be determined on site." Mr Bennett agreed the proposed deck, if built to scale, would have been about 30m long and would have been roughly level in gradient. That is, it would have met the existing walking track at ground level at the same height as the deck surrounding the shed. He agreed that had the ramp or deck been built in accordance with the architect's apparent intention it would not have had a fall of 1:3.7.

86. Mr Bennett was asked about the NPWS Walking Track Construction Guideline. He agreed that, for a "walk", the maximum preferred gradient is 8%, which was significantly steeper than the ramp in question. For a track, he agreed that 3-8% is the preferable range given, but that a gradient as high as 25% may be permitted "as a machinery maximum for people driving". His opinion that the ramp met the criteria for the track was based upon the fact that the ramp was approximately 1:4 (25%), the given maximum for machinery on a "track". Senior counsel for the plaintiff put to him that the maximum for a pedestrian was 1:5 (20%). He disagreed, stating that he did not see that figure as a maximum. I asked some question to clarify his method of arriving at the conclusion that Merritt's Walk was best suited by the definition of "track" in the NPWS guidelines. He explained that the gradient of the rises in the path to accommodate the bobsled (including the ramp in question) were prohibitive in and of themselves to applying the "walk" definition. I drew his attention to the illustrations set out in para 72 above:

Master: It did seem to me, looking at the illustrations on that page in the guidelines, that a walk looked rather more like the photographs in evidence of the Merritt's pathway [Merritt's Walk], whereas the track looked rather more like a dirt track? --- But again, at the time when the facility was constructed those pathways weren't built.

So you were really dealing with this at the time of construction rather than the time of the fall? --- That's right.

He said that thinking about it now, even at the time of the fall, when the dirt track had been replaced with interlocking pavers, metal grid and timber walkways, the path could not have been defined as a "walk" because of its slope on either side of the bobsled.

87. Mr Bennett agreed that the conclusion in his report that the ramp was not too steep was entirely based upon his interpretation of the relevant codes. He agreed that he was not qualified to conduct friction co-efficient testing and had not conducted any such testing on the ramp. Looking at the wooden exhibits he agreed that, in contradistinction to the plywood, the planks of wood from the ramp were not even and consistent of surface. That is, the consistency varied from place to place across the planks - some parts were rougher than others. Nor had he observed a consistency of surface on inspection of the ramp. He agreed that it would never be accurate to look at a table of co-efficients of friction in relation to plywood and apply them to hardwood with a surface texture varying from one part to another. He eventually conceded that in an environment where the planks were subject to heating, freezing, cooling and thawing and also to the process of ski boots, walking boots and pedestrians generally walking on the surface, processes of polishing (in the sense of wear) and degradation would be occurring simultaneously. This would generate different levels of friction across the surface. He did not agree that given the gradient of the ramp, timber was a poor material to have used. Nor did he agree that the word "polished" could apply to the ramp at all.

88. Mr Bennett agreed that the addition of carpet to the surface of the ramp would improve the slip resistance of the ramp and prevent the variations evident on the exhibited planks. Carpet was likely to prevent slips. A number of other options such as concrete and cleated surfaces were available to improve the friction provided by the ramp.

Analysis of Mr Bennett's evidence

89. The unusual nature of this action placed Mr Bennett at a distinct disadvantage in that much of his report was excluded due to the limited scope of the remitter. He had clearly come to a classification of the shed and decking at variance with that expressed by Mr Fozzard at the original hearing. Mr Fozzard himself had come to a different view. However my finding that the building was a class 6 structure was approved by the Court of Appeal and is set in stone. Much of the struck-out material relating to classification appeared in the early parts of Mr Bennett's report. Consequently, they provide a basis to some extent for his opinions in those parts of the report which survive. This is clearest in relation to his opinion that the ramp was not in breach of the building codes or AS1428: that the former set no minimum standards for the ramp in terms of gradient or slip resistance, and that the latter did not apply. This opinion appears to be at odds with findings I made at the original hearing. I found that the ramp was an exit from a class 6 building and, as an external ramp serving as an exit, was required to have a gradient of no less than 1:12 and a floor surface consisting of steel mesh or other suitable material in order to comply (BCA, cls G4.5 and G4.7: Posetti, paras 144-5). It followed from the classification that AS1428 also applied to the ramp (para 143).

90. Having read the definitions and looked at the illustrations in the NPWS guidelines, it seems to me that Merritt's Walk as it was in 1997 was most appropriately defined as a "walk", Merritt's Track being an example of a typical "track". Mr Bennett's reliance on the gradient of the ramp as definitive of the type of path seems to me misconceived. The guidelines, I am sure, are intended to assist in determining the appropriate gradient according to use, not in determining appropriate use according to gradient.

91. Mr Bennett stated that the ramp was accessible only after traversing a steep gradient from the other direction. This is true in the case of the plaintiff on the day of the accident, but not of someone walking to the bobsled from Woodridge. I accept that there are other pedestrian walkways of equivalent or greater steepness in the local area. I generally preferred Mr Bennett's description of the timber used to construct the ramp to that of Mr Fozzard. However I accept that there was variation across the surface of the ramp on the day of the accident: some areas were rougher, some smoother. The harsh alpine environment tended to degrade the wood, whereas the passage of boots and shoes, in the uncarpeted years prior to the accident, tended to make areas of the ramp smoother and hence more slippery than they would otherwise have been. I find the comparison with the plywood generally useful in giving me a benchmark by which to fix my mind on co-efficient of friction between wood and rubber soles. I am satisfied there are a number of materials, including carpet, which would produce a more consistent surface, and one less likely to be slippery.

92. Two sets of footwear are in evidence. One is a pair of rubber-soled shoes. The other is a pair of resin or synthetic-soled boots similar to those worn at the time of the accident. As described in para 61 of my original judgment, Mr Fozzard thought that the rubber soles would provide adequate slip-resistance in dry conditions. Of the resin-soled boots, the kind which I determined the plaintiff was wearing at the time of the accident, he said only that they might provide adequate traction when new, but would be likely to become unsuitable as the soles became worn. The plaintiff had owned the boots for no more than three months at the time of the accident. I note that the letter of instructions from the defendant's solicitors to Mr Bennett says that the plaintiff was wearing rubber soled shoes at the time of the accident. It also said that Mr Fozzard had conceded that these would have been slip-resistant in dry conditions. It seems to me that the instructions given to Mr Bennett related to the rubber-soled shoes rather than the boots I found that the plaintiff was actually wearing, and that his report was premised on that assumption.

93. I am satisfied that the architect's drawings in the approved development application depicted a 30m extension of the deck in the direction of Woodridge, which was intended to meet with the modified pathway and to be roughly level. The ramp was built inconsistently with these drawings.

Apparent findings in original reasons

94. Before moving on to my findings and decision, I should deal with an issue which arose during the rehearing as to the status of some passages in the original judgment. The relevant portions are quoted below:

147. . . . I also accept [Mr Fozzard's evidence] that the ramp, having regard to its gradient, surface and lack of proper handrails, was potentially dangerous, particularly in an alpine area.

. . .

156. . . . I am satisfied that the ramp was unusually steep for a ramp on a pedestrian walkway, and that it had a relatively smooth surface.

. . .

161. I must also take into account the incontrovertible fact that the plaintiff slipped and fell on the ramp. I must ask myself whether there is a reasonable explanation for this having happened in the absence of ice. The ramp was steep and its surface relatively smooth. Other witnesses recalled having felt a sensation of insecurity descending it. The plaintiff's footwear may well have had soles which, in combination with the slope and surface of the ramp, failed to provide an adequate degree of friction. It seems to me feasible that the plaintiff could have slipped and fallen on the ramp in the absence of an icy surface. (emphasis added)

95. It was submitted by senior counsel for the plaintiff that the sentences in bold were findings and could not be revisited. Initially he argued that they effectively determined breach, but he later accepted that I had not made a finding of breach, instead submitting that the findings went to breach and were compelling. Senior counsel for the defendant argued that the statements were merely comments or observations, and could therefore be revisited in light of the evidence at the rehearing.

96. Paragraph 147 in particular poses a difficulty on its face because on the one hand it was the subject of the defendant's fourth notice of contention on appeal and was rejected by the Court of Appeal. On the other, it was based upon an acceptance of Mr Fozzard's description of and evidence about the ramp, which has now been undermined to some extent by effective cross-examination by senior counsel for the defendant. It seems to me, on analysis of what is actually said, that if it amounts to a finding, it is not of much value to resolving the issue at hand. A finding that the ramp was "potentially dangerous" may have given rise to the Court of Appeal's misgivings about my treatment of the case, but does not seem to go very far beyond suggesting that there is an issue to be decided. If it was not potentially dangerous, there would have been no need for a rehearing. If it is a finding, it does not contribute to deciding whether the gradient, surface and lack of proper handrails rendered the ramp dangerous in fact, or whether they constituted a breach of the defendant's duty of care. The words "particularly in an alpine area" further undermine its usefulness in the present context.

97. I am satisfied that para 156 was in the nature of a finding. However, I informed counsel of my provisional view, which I retain, that having decided that the ramp was unusually steep and had a relatively smooth surface, I now need to decide in accordance with the Court of Appeal decision whether it is so steep and smooth as to constitute a breach of the defendant's duty of care.

98. Essentially the same finding is made in para 161. My reference to the plaintiff's footwear suggests that when I used the words "relatively smooth", I may have meant relatively to the sole of the plaintiff's boots. That paragraph reveals that the comments about steepness and smoothness were in the context of finding that there was a reasonable explanation available for the plaintiff's fall other than ice on the ramp.

99. Smoothness and steepness are themselves relative concepts. The defendant requested that Mr Fozzard be recalled as that would have been the appropriate course had the plaintiff sought leave to amend the pleadings during the original hearing. The cross-examination was effective and raises doubts in my mind about the accuracy of Mr Fozzard's descriptions of the ramp. I have taken this into account when determining what is meant by "relatively smooth", particularly bearing in mind the fact that the description is to an extent based upon Mr Fozzard's evidence at the initial hearing.

The standard of care required

100. This is an occupiers' liability case. The defendant's duty of care to the plaintiff was that of an occupier to an entrant - to take such care for her safety as was reasonable in the circumstances, and to protect her from risks of injury which could be foreseen and avoided: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488; Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 at 663. The standard or content of that duty is determined according to what the reasonable person would have done in response to the foreseeable risk to the plaintiff, including consideration of the probability of the risk being realised, the magnitude of the consequences, and the cost or inconvenience of remedying the risk: Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 per Mason J at 47-48. The duty of an entity responsible for a public area to a pedestrian is to be assessed with regard to the obviousness of the risk to a pedestrian exercising reasonable care for his or her own safety: Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512 and subsequent cases, reviewed in Temora Shire Council v Stein [2004] NSWCA 236; (2004) 134 LGERA 407 by Giles JA at 416-419. An occupier of premises is required to take only such care as is reasonable in the circumstances, not to make the premises as safe as reasonable care and skill on the part of anyone can make them: Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 per Gaudron J at 193. It is incumbent upon the tribunal to identify with precision what was a reasonable response, in accordance with the Wyong Shire Council v Shirt considerations, to the foreseeable risk of harm: Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 per Gummow and Hayne JJ at 611-2. These questions must be considered from the defendant's perspective, with its state of knowledge, to assess whether the defendant acted as a reasonably prudent person would have done: Woods v Multi-Sport Holdings Ltd [2002] HCA 9; (2002) 208 CLR 460.

101. The question, then, is whether the reasonably prudent person in the defendant's position, given these particular circumstances, would have built or, having built would have left in place, a ramp such as that on which the plaintiff fell, having regard to its gradient, surface texture and balustrades. In determining what was reasonable, I must ask myself the following questions: was there a foreseeable risk of these features of the ramp causing harm (or in the case of the handrails, not preventing foreseeable harm) to someone in the plaintiff's position exercising reasonable care for her own safety having regard to the obviousness of the risk; what was the probability of such a risk manifesting itself; what was the magnitude of the foreseeable harm; and what was the cost or inconvenience of removing the risk? If I conclude that, in combination, the steepness and smoothness of the ramp and the nature of the handrails give rise to a breach, I must then decide whether the breach was a cause of the plaintiff's accident.

Breach of duty

102. Senior counsel for the defendant referred in his submissions to a number of cases, two of which I will discuss. Wilkinson v Law Courts Ltd [2001] NSWCA 196 concerned a man who had tripped whilst descending the stairs outside the Law Courts building at Queens Square in Sydney. The New South Wales Court of Appeal, in a decision by Heydon JA (Meagher JA and Rolfe AJA concurring), upheld the trial judge's findings that negligence was not made out. The plaintiff had argued at first instance that although the stairs complied with the relevant building code, Ordinance 70, they did not comply with AS 1657. The trial judge found that the latter did not apply, and this finding was not challenged on appeal. This undermined the relevance of the plaintiff's expert's evidence and, to a large extent, the plaintiff's submissions on appeal. In dismissing the action, Heydon JA said at para [21] "An occupier of premises is only required to take such care as is reasonable in the circumstances. The duty is not to make the premises as safe as reasonable care and skill on the part of anyone can make them": see also Jones v Bartlett per Gaudron J at 193. Heydon JA had regard to the similar characteristics of steps and the lack of handrails at other public buildings in Sydney, saying that, although not determinative, this pointed against negligence in relation to the steps outside the Law Courts Building. In relation to the handrail, his Honour stated that, in his opinion, if the dimensions and lack of colouration on the steps did not constitute a breach, then the lack of a handrail did not either (para [24]). The reasons for this were twofold: the trial judge was not satisfied that a handrail constructed at the edge of the steps would have been within reach of the plaintiff, given the route he took down the stairs; and the trial judge did not err in finding that the fit and athletic plaintiff would not have deviated from his chosen route to use the rail.

103. The basis of the Court of Appeal's decision was that stairs are inherently and obviously dangerous. Placing handrails in reach of every user of the wide steps would be expensive and ugly, and would interfere with many customary uses of the steps. Referring once more to the similarity between the subject stairs and those at other public buildings around Sydney, his Honour emphasised the danger of focusing too closely on what happened to this particular plaintiff in retrospect.

104. His Honour rejected the plaintiff's argument that the trial judge had erred in concentrating on the particular features of the plaintiff as being a fit and athletic young man at the time of the accident, rather than as a member of a more general class of people, including the elderly and disabled. His Honour said at para [28]:

In my opinion, the trial judge did not err in the manner suggested. The possibility that the steps constituted a danger to the very old or the very young is not a circumstance which can assist the plaintiff to demonstrate a breach of a duty of care owed to him.

105. This passage bears on the relevance of my finding, upheld by the Court of Appeal, that the Disabled Access Code AS 1428 applied, and that the ramp was in breach of it.

106. The defendant also relies on Martin v Wagga Wagga City Council [2004] NSWCA 289. In that case the plaintiff slipped whilst ascending a concrete ramp constructed and maintained by the defendant Council. A short time previously she had descended the same ramp. The trial judge rejected the claim and it came before Sheller, Santow and Tobias JJA on appeal. The plaintiff's expert had based his opinion that the ramp was too steep principally on the breach of what he considered applicable standards: the RTA Road Design Guide, issued by the NSW Roads and Traffic Authority, and AS 1428. It was also in breach of Ordinance 70. The ramp had a gradient of 1:3.64, more than twice the maximum of 1:8 stipulated in the RTA Road Design Guide and Ordinance 70. The Court found that the stipulated maximum of 1:8 in the Road Design Guide was set with the full range of humanity in mind; it was an absolute maximum set with those experiencing mobility limitations in mind. It found that steepness was more dangerous where a person was descending a ramp, and where they had no previous knowledge of the ramp and its steepness.

107. The only evidence of anyone else slipping on the ramp in the twenty-four years since its construction was that of a "lollipop lady", Ms Bailey, who had worked at the adjacent crossing. She had slipped herself, and had also reported her concern about the steepness of the ramp to the RTA. There was no evidence of the complaint reaching the Council. She was present at the crossing for two hours each school day for seven months and did not observe any other accidents. In dismissing the appeal, Santow JA, with whom the other judges of appeal concurred, said:

As the trial judge found the facts, there was no complaint to the Council about the ramp prior to the accident in twenty-four years notwithstanding the high volume of traffic using the ramp. In those circumstances, absence of complaint is cogent support, if not sufficient in itself, for a conclusion that the steepness of the ramp did not materially contribute to the accident suffered by the claimant. In particular, the claimant's frank account of the circumstances of the accident, coupled with the concessions properly made by [the plaintiff's expert] in cross-examination, when viewed against the perspective of the RTA Road Design Guide being directed at pedestrians with mobility limitations, result in the trial judge's conclusion rejecting the plaintiff's case as inevitable.

108. There are several critical points of difference which should be noted between the facts of this case and those of the matter at hand. The plaintiff was ascending the ramp. She had recently descended it, and so was familiar with its steepness. The ramp was concrete, its surface striated. The defendant had received no complaint in twenty-four years, whereas in the present case they had received no complaints for three. Although they are both responsible for roads, footpaths and other infrastructure used by pedestrians, the defendant was a public authority; Kosciusko Thredbo is a commercial entity, operating Thredbo Village as a business, with the aim of making a profit.

The codes and standards

109. Codes and standards come into existence for a variety of reasons, and represent a complex matrix of considerations. They may sometimes be aspirational, or represent an industry consensus on "best practice". The Court of Appeal's approach in Martin v Wagga Wagga deals with breach of such codes and standards, with respect, in the appropriate way. They may be of some probative value as to the reasonableness of an occupier's act or omission, but breach of a code or standard is not determinative of a breach of the common law duty of care owed to an entrant.

110. The relevance of my findings in the original judgment about the applicability of the BCA, the interim NSW NPWS Building Code and AS 1428 to the ramp, and of my findings about breaches of these codes, was placed in question on the rehearing. In the original judgment, I found that compliance with the BCA and Interim Code (and therefore AS 1428) were a condition of the development application, and therefore had statutory force (see paras 137-139). I am now, however, satisfied that the aspects of those codes relating to disabled access are irrelevant to the question of breach of the defendant's duty to this able-bodied plaintiff. Furthermore, the breach must be determined in the circumstances present at the time of the accident. Given that there was no ice or snow on the ramp, and there was not a fire or immediate emergency from which the plaintiff was fleeing at the time of the accident, those aspects of the codes relating specifically to alpine areas (for example, part G4 of the BCA) and emergency exits (for example D1.10 of the BCA) are also irrelevant to the question of breach. This in effect renders my findings of breach of the codes and standard (see paras 140-149) irrelevant to the issues on remitter.

111. The slipperiness of a ramp is determined by a combination of factors: principally its gradient and its surface friction relative to the footwear of the pedestrian. Human movement also plays a role, as can ice, snow, dirt and foreign objects.

112. There was no evidence that the NPWS Walking Track Construction Guideline was consulted in the planning and construction of the ramp, nor even that it was in existence in 1994. However, the document was relied upon by the defendant's expert witness, Mr Bennett. I found it helpful in appreciating what was an appropriate gradient for a pathway being used by a broad cross-section of the public, which I have found Merritt's Walk was, and was intended to be by the defendant. I have found that Merritt's Walk was best categorised as a "walk" in accordance with the definitions in the guideline, and, as such, it was preferable that the maximum gradient be 8% or 1:12. A lower maximum of 5% is stipulated for disabled access. I take into account what the Court of Appeal said in Martin, and regard the 1:12 gradient as incorporating a healthy buffer to account for a cross-section of the community. Indeed, a "walk" is defined as being "for high use by persons of all ages and physical condition." I also take into account that it is a guide for use in alpine conditions, and therefore envisages the possibility of snow and ice, which were not present when the plaintiff had her accident. Having taken these matters into account, the guidelines still offer a useful starting point for assessing the reasonableness of the gradient.

113. The plaintiff herself described the ramp as very steep (para 10). Mr Woodford, a fellow journalist who witnessed the accident, described the ramp as short and sharp. Ms Bilboe, a colleague and friend of the plaintiff, had slipped on the ramp in dry conditions. She attributed her slip to the steepness of the ramp. Mr Goodwin, a NSW Ambulance Officer called by the defendant, agreed that the ramp was moderately steep. Mr Fozzard's wife slipped on the ramp in shoes with polyurethane soles. I am satisfied that my description of the ramp as unusually steep for a ramp on a pedestrian walkway is apt.

114. I am satisfied that the architect intended, at least to the point where the development application was approved, that a deck be built where the ramp now stands which, if not level, should be of a mild gradient. Neither the architect nor the builder was called to explain the eventual steepness of the ramp constructed in 1994, at 1 in between 3.7 and 3.9. Such evidence was peculiarly within the knowledge and control of the defendant and I draw the available inference that it would not have assisted the defendant's case.

115. By the time of the accident, I am satisfied that the hardwood timber had become smooth in some places and rougher in others. I find Mr Fozzard's description to be exaggerated, but the photographs attached to his report, and others taken since, show some parts of the ramp to be smoother than others. In her evidence, the plaintiff said that people were walking up and down the ramp on the morning of the accident in single file on either side of the ramp, so that they could hold onto the balustrades. Two photographs marked Exhibit B4 and E4 show what appears to be a smoother surface on each side of the ramp, where I assume the majority of pedestrians would have walked. This is consistent with the appearance of the boards placed in evidence, although they are generally rougher in appearance than they were in 2000, looking at the photographs, no doubt due to the effect of placing carpet over them. Giving evidence in 2003, by which time the carpet had been in place during winter for three years, Mr Siegenthaler, a manager with the defendant, gave evidence that he thought the ramp had been smoother in 1997. Since 2003 the carpet had been in place all year round and this is likely to have continued to roughen the surface texture of the boards.

116. None of the expert witnesses professed expertise in friction co-efficient testing. Opinions expressed have been based on analogy with published tests, or the sorts of tests a lay person might use: walking up and down the ramp, and sliding objects down it. Given my finding that the ramp had a varying surface friction, such testing would at best be unreliable without precise knowledge of the location of the plaintiff's slip.

117. I am satisfied that in deviating from the architect's plans and building a steep ramp from timber, the defendant created a foreseeable risk of someone falling, even in dry conditions. By 1997 Merritt's Walk was in use by a wide range of people, some of whom would be in Thredbo, and using the path, for the first time.

118. During the week of the accident, the defendant was dealing with a crisis. Nevertheless, it was foreseeable that a journalist such as the plaintiff would be in Thredbo for the first time and would use Merritt's Walk to reach the media briefing centre, the path along the main road being restricted to emergency personnel. The likelihood of the risk may have been slight, and I accept that three years had passed without report of an accident, but the possible magnitude of injury if someone slipped and fell was considerable. I made the point in my original reasons that not everyone who slips reports an injury; the plaintiff did not report her own injury, and it proved to be a serious one.

119. There were various practicable and inexpensive measures open to the plaintiff to remove or minimise the risk. The ramp could have been built to plan, or at least with a more gentle gradient. Mr Fozzard gave evidence at the original hearing, which I accept, that a wooden ramp with a slope of 1:14 could have been built in 2003 for less than $5,000. A ramp could have been built from concrete or steel, or with a cleated surface.

120. The trial judge in Wilkinson, with the approval of the Court of Appeal, found that the application of a white nosing strip on the stairs after the plaintiff's fall had been in response to a Commonwealth Disability Strategy access audit of the Law Courts building. The trial judge found that the steps may well have needed adjustment to be safe for people with defective sight or agility, but that had no bearing on the duty owed to a fit young man with good eyesight. In interrogatories in the present case the defendant was asked about the facts and matters taken into account in laying carpet on the ramp in 2000. The reply was:

The ramp was only one of a number of locations which were carpeted from 2000 onwards. This was done as part of a general review of risk management and in response to a perception of increased litigation in the 1990s. Carpeting was applied to most wooden walkways and structures in Thredbo Village to provide better security of footing for people in ski boots for which timber slat flooring is a potential hazard, in particular a potential trip hazard.

121. The evidence that carpet was laid on the ramp after the accident is not determinative of the defendant's liability, but it can go to the retrospective assessment of the practicability of measures ameliorating a foreseeable risk: cf Caledonian Collieries v Speirs [1957] HCA 14; (1956) 97 CLR 202 at 224. I find that given the gradient and partially smooth surface of the ramp, laying a carpet was a practicable measure the defendant could have taken before the accident to reduce the risk that a person visiting Thredbo for the first time would slip, fall and suffer a serious injury.

122. The defendant argued that the gradient must be seen in the alpine context. Other pathways were as steep or steeper. This is reminiscent of the successful argument by the defendant in Wilkinson that there were many sets of stairs outside public buildings in Sydney similar to those upon which the plaintiff in that case tripped. The critical difference in that case is that the Court found the stairs to be of acceptable dimensions. Evidence about other stairs in the business district supported this argument and went to the obviousness of the risk of injury to a pedestrian descending a normal flight of stairs. The existence of paths with similar gradients in and around Thredbo Village is not sufficient to render an otherwise negligently constructed and maintained ramp reasonable.

123. The steepness of the ramp may have been obvious to a person coming to Thredbo for the first time and exercising reasonable care and safety, but the risk of slipping and falling was not. Even if the risk of slipping had been obvious, it would have been difficult to avoid.

124. I find that in the circumstances the defendant breached its duty of care to the plaintiff by constructing and leaving in place a ramp of that gradient with a partially smooth surface.

Causation

125. The boots worn by the plaintiff on the day of the accident were more probably than not Diana Ferrari boots with a synthetic or resin sole with furrow lines perpendicular to the direction of travel. They were about three months old. The ramp had a variant surface and thus a range of co-efficients of friction across its face. I cannot be sure how worn the plaintiff's boots were at the time of the accident. I am satisfied that where side A of the plywood exhibited gives a co-efficient of friction of 0.75 in combination with Neolite rubber soles, it is likely that parts of the ramp had a higher, and parts a lower co-efficient of friction in combination with the soles of the boots the plaintiff was wearing when she fell.

126. As I have said, it seems to me that Mr Bennett's opinion was based on the assumption that the plaintiff was wearing rubber-soled shoes at the time of the accident. I have examined the soles of the boots in evidence comparable to those she actually wore. The furrows are less than 1 mm deep and occur at regular intervals of slightly less than 1.5 mm. No evidence of friction co-efficient testing of the boots was tendered. It seems to me that minimal wear would reduce their grip. As it is, they do not seem to me to offer a great deal of traction, though more than, for example, smooth leather or polyurethane soles might.

127. The defendant was faced with a problem in running this case. We know the plaintiff lost her footing somewhere near the top of the ramp. Knowing that she did fall but not precisely where, the defendant has sought to argue, in effect, that every point on the ramp where the plaintiff could have fallen had sufficient friction in combination with her shoes. She could not have fallen due to loss of friction between the soles of her boots and the ramp, and hence, the defendant argues, the slip must have been caused by something else: for example a gum leaf which might have blown onto the ramp.

128. Senior counsel for the defendant referred to the plaintiff's evidence that the surface of the ramp was as slippery as ice. He submitted in effect that a rubber-soled boot on a dry board could not give such a sensation. He invited me to draw the inference that either some foreign object (such as a gum leaf) must have come between her shoe and the ramp, or that something about the movement of her body must have created an impression of ice-like slipperiness. This submission is highly persuasive. The plaintiff's evidence was clear: she said there was a thin layer of ice or frost on the wood, and that it was glistening and slippery. Under cross-examination she said that she did not specifically remember whether she noticed it glistening on the walkway before reaching the ramp. Senior counsel for the defendant was correct in saying she must have been mistaken. I find that the most likely explanation for her mistake is her subconscious desire to improve her case, the same desire evidenced by her changing evidence about the footwear she wore. I am not satisfied that a slip on ice is entirely different in character to a slip on a dry surface. It seems to me that once traction is lost, the sensation is much the same. A slip on the ramp in dry conditions is consistent with an answer she gave in examination-in-chief where she said: "I remember feeling my feet start to slip".

129. Mr Bennett based his opinion that the ramp offered adequate slip resistance on the tests done by Templer with plywood and Neolite rubber-soled shoes in controlled conditions. Mr Fozzard agreed that on the material he had now seen, the co-efficient of friction between the ramp and the shoes he assumed the plaintiff to have been wearing at the time of the accident was marginally sufficient to prevent a slip. The defendant relied upon this as the high watermark of the plaintiff's case. I have three problems with this concession. The first is that the concession is based upon material seen by Mr Fozzard since the earlier hearing, presumably including Mr Bennett's report. Mr Bennett's report suffers from an incorrect assumption as to the shoes worn by the plaintiff. The second is that neither Mr Bennett nor Mr Fozzard is an expert in friction co-efficient testing, and neither carried out tests. The third, and most important, is that I have found that the surface of the ramp varied from place to place. I am not satisfied that it is more likely than not that every point on the ramp where the plaintiff might have slipped offered adequate slip resistance to the soles of her boots.

130. It is possible that there was a foreign object between her boot and the ramp at the time she fell. The defendant submitted that I should find this to have been the relevant cause of the fall. For this submission to succeed, I would need to be convinced that the steepness and smoothness of the ramp was not even a cause of the slip. It may have been that a gum leaf or small piece of litter came between the plaintiff's boot and the ramp. This may have reduced the slip resistance of the ramp. A small object like that would probably still leave a significant amount of the sole of the boot in contact with the ramp or, as she slipped, more of her boot would come in contact with the ramp again. A lesser gradient or a more even surface should still have provided sufficient traction. I am not satisfied on the balance of probabilities that the plaintiff slipped on an object so large that a ramp with appropriate traction would not have prevented the fall.

131. I have examined the boots, planks and photographs carefully. I find on the balance of probabilities that the plaintiff slipped on a smooth section near the top and near the northern edge of the ramp. Her fall was caused by the steepness and smoothness of the ramp.

The handrail issue

132. Given the foregoing conclusion, the defendant is negligent regardless of whether the handrail was adequate or not. The handrail was not a sufficient precaution against the foreseeable risk of injury on the ramp due to its gradient and surface. It is unnecessary to decide whether on a ramp of acceptable gradient and slip-resistance this handrail would have been inadequate.

133. I find for the plaintiff. I provisionally assessed damages at $1,024,500.00 on 23 June 2004.

134. I shall hear the parties as to whether judgment should be entered with effect from that date, or whether the figure should be increased to include interest since then. I shall also hear the parties as to costs.

I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 2 February 2007

Counsel for the plaintiff: Mr J P Gormly SC & Ms K Nomchong

Solicitors for the plaintiff: Pamela Coward & Associates

Counsel for the defendant: Mr P H Greenwood SC & Mr P A Walker

Solicitors for the defendant: Dibbs Abbott Stillman

Date of hearing: 17, 18, 19, 20 July 2006

Date of judgment: 2 February 2007